Posted/Revised: July 6, 2021
TERMS AND CONDITIONS OF SALE AND USE
These Terms and Conditions of Sale and Use (“Terms”) constitute an agreement (this "Agreement") by and between VIAT Services LLC, a Florida limited liability company ("Provider") and the corporation, LLC, partnership, sole proprietorship, other business entity, or individual executing this Agreement ("Customer").
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER'S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
These Terms will govern all Customer's use of VIAT Services websites (http://www.viatservices.com), products, and services as well as all purchases by Customers of products and services from VIAT Services LLC (including http://www.viatservices.com) . The Terms as well as the VIAT Services LLC End User License Agreement (“License Agreement”) will govern any receipt and use of VIAT Services LLC software.
These Terms constitute the entire agreement between the Customer and VIAT Services LLC concerning this matter, and supersedes all discussions, proposals, bids, invitations, orders, and other communications, oral or written on these subjects. You agree to be bound to these Terms by the date (“Effective Date”) you start using the VIAT Services LLC websites, place an order for products and/or services (including software, online, paper and pencil formats), sign up for a free trial, use the VIAT services software, apply for the Academic Research Qualification, register for an account, sign the Customer Agreement, provide a purchase order, or by partial or total payment of a VIAT Services LLC invoice for products or services ordered.
VIAT Services LLC reserves the right, at any time, to modify, amend, alter, or update these Terms. You agree to be bound by such modifications, amendments, alterations, or updates. We encourage you to visit this page periodically to review our most current Terms.
1. DEFINITIONS
The following terms shall have the following meanings whenever used in this Agreement.
1.1 "Customer Data" refers to any data (including online, software, paper & pencil) collected through the Product/Service by or from the Customer, including without limitation by Customer's Users (Users as defined in 1.6).
1.2 "Employee" refers to any personnel within Customer's organization, including full-time employees, part-time employees, interns, volunteers, consultants and independent contractors.
1.3 “Product/Service” refers to any product (including but not limited to assessments) or service (including but not limited to consulting) provided by VIAT Services LLC to the User.
1.4 "Free Trial" refers to no-charge use of the Product/Service for purchase consideration only. Free Trials do not include use of the Product/Service with actual job applicants, Employees, or students unless otherwise agreed in a writing by Provider's authorized representative.
1.5 "Assessment Taker" means an individual who takes VIAT Services LLC assessment at Customer’s direction or request, including without limitation job applicants, students, and Employees. (Employees may operate as Assessment Takers to use the Service for benchmarking or base-lining or for other purposes. Individuals taking the assessment are both a Customer and an Assessment Taker).
1.6 "User" shall mean any individual who uses the VIAT Services LLC’s products or services on Customer's behalf. Users include "Assessment Takers," as well as “Employees” and other agents.
1.7 “License Agreement” shall mean the VIAT Services LLC End User License Agreement (“License Agreement”) that will be provided with all purchases of the LLC software and will govern any receipt and use of VIAT Services LLC software.
2. SERVICE IN GENERAL
Provider shall provide the Product/Service to Customer according to Provider's then-current standard policies and procedures.
2.1 FICS Assessments taken on the Alchemer.eu platform.
How do we store your data?
Your data is processed and stored on the alchemer.eu data server located in Germany. Your survey responses on alchemer.eu are processed and remain in the EU. VIAT Services LLC deletes data at the end of every quarter from the application.
What data do we collect?
VIAT Services LLC collects data including your identifier (we request you do not put your name or any personally identifiable information in this field), the date/time you started and finished the assessment, the status of your assessment (partial or complete), the language you took the assessment, the link you used to access the assessment, and your answers to the assessment questions.
How do we collect your data?
We collect data and process data when you voluntarily complete an assessment.
How will we use your data?
VIAT Services collects your data so that we can we can use your responses to create your FICS report and share this with the company that requested you to take this assessment. Some data is collected by Alchemer on the platform automatically such as the language of the assessment. We will also access your data to solve technical problems and create invoices for the company that requested you to take the assessment.
How to contact us
If you have any questions about the FICS assessment administered on the Alchemer.eu platform and the data we hold on you, please do not hesitate to contact us at: info@viatservices.com.
2.2 Free Trials. Customer is limited to a single Free Trial, and Free Trials will be limited to the written terms communicated by VIAT Services to the Customer. Customer shall not exceed the limits in the preceding sentence. The Customer shall use the Free Trial for evaluation purposes only and not use the Free Trial to collect actual data or administer actual assessment, unless the Provider's provides express written consent. Provider may discontinue a Free Trial at any time and for any reason including, without limitation, excessive testing or questionable testing practices (such as apparent testing of actual job applicants). Free trials are provided only to organizations (and not to individuals).
2.3 Use of Information. With the exception of Assessment Taker personally identifiable information, Provider shall have the right to use, distribute, publicize, distribute, sell, and otherwise exploit all assessment results and other data input into or otherwise collected through the Product/Service. The Provider will also be able to use the name of the Customer in marketing materials, unless notified in writing by the Customer, in which case the Customer and will allow for 30 business days for Provider to withdraw the Customer’s name from marketing materials.
2.4 Data Management. Provider shall have no liability for erased or otherwise lost Customer Data, including for any damages resulting directly or indirectly from such loss; and Provider may permanently erase Customer Data if Customer's account is delinquent, suspended, or terminated for 30 days or more.
2.5 Communications. Customer acknowledges and agrees that email shall be the primary method for communications regarding the Product/Service, including without limitation invoicing. Customer shall make certain that both the "Bill To" and "Ordered By" contact information provided to the Provider are accurate.
2.6 Product/Service Purposes & Capabilities. Customer recognizes and agrees that: (a) the Product/Service is for business or educational institution use and not for direct consumers; (b) the Product/Service is not intended to store or use protected health information, as defined by the Health Insurance Portability and Accountability Act of 1996 and its enabling regulations and related laws ("HIPAA"), and the Product/Service is not HIPAA compliant; and (c) the Provider strictly prohibits the redistribution of the Product/Service.
2.7 Prospective Assessment Materials. Customer recognizes and agrees that VIAT Services LLC may include additional prospective questions in assessments for improving and updating our Products/Services. Provider reserves the right to include additional assessment materials (e.g., prospective questions) with the only purpose of improving future products. Additional inclusion of Product/Services prospective assessment materials will not exceed 10% of the items in the assessment.
2.8 Product/Service Refusal and Termination. Provider reserves the right at its discretion to refuse at any time to accept a registration or provide access to Product/Service. The Provider reserves the right to terminate at its sole discretion, at any time the Customer's access to Product/Service and any login(s) and account(s) you may have in connection to the Product/Service.
3. ACCEPTABLE USE POLICY (“AUP”)
3.1 Acceptable Use. Provider provides this Product/Services to assist Customer in assessment and training (for example screening job applicant for job fit, assessing existing employees or students, and training abilities). Provider's Product/Services and the assessment results should be only one element of a comprehensive assessment (including but not limtied to performance at work/school, interviews, biographical information, or other assessment results). In case of the 3TOTA, the assessment is a career tool which provides the respondent with a report to be viewed as assumptions to be validated against other sources of data such as performance at work/school, interviews, biographical information, or other assessment results. It shall be the Customer's responsibility to become familiar with the Uniform Guidelines on Employee Selection Procedures (UGESP), procedure regarding testing in schools and universities, and to help avoid cultural bias and unfair discrimination and to make certain that only job-related or specialization-related selection techniques will be utilized in hiring job candidates or selecting students.3.2 Unacceptable Use. Provider requires that all Customers and Users of the Product/Service conduct themselves with respect for others. In particular, please observe the following rules in your use of the Product/Service:
A. Abusive Behavior: Do not harass, threaten, or defame any person or entity. Do not contact any person who has requested no further contact. Do not use ethnic or religious slurs against any person or group.
B. Intellectual Property: Do not infringe upon the copyrights, trademark rights, trade secret rights, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder.
C. Spam: Do not send bulk unsolicited e-mails ("Spam") or sell or market any product or service advertised by or connected with Spam. Do not facilitate or cooperate in the dissemination of Spam in any way. Do not violate the CAN-Spam Act of 2003.
D. Privacy: Do not violate the privacy rights of any person. Do not collect or disclose any personal address, social security number, or other personally identifiable information without each holder's written permission. Do not cooperate in or facilitate identity theft.
E. Hacking, Viruses, & Network Attacks: Do not access any computer or communications system without authorization, including the computers used to provide the Product/Service. Do not attempt to penetrate or disable any security system. Do not intentionally distribute a computer virus, launch a denial of service attack, or in any other way attempt to interfere with the functioning of any computer, communications system, or website. Do not attempt to access or otherwise interfere with the accounts of other users of the Product/Service.
F. Fraud: Do not issue fraudulent offers to sell or buy products, services, or investments. Do not mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any other way.
G. Violations of Law: Do not violate any law including but not limited to copyright laws.
3.3 Consequences of Violation. Violation of this Acceptable Use Policy may lead to suspension or termination of the Customers or User's account or legal action. In addition, the Customer may be required to pay for the costs of investigation and remedial action related to AUP violations. Provider reserves the right to take any other remedial action it sees fit.
3.4 Reporting Unacceptable Use. Provider requests that anyone with information about a violation of this AUP report it via an e-mail to the following address: info (at) viatservices (dot) com. Please provide the date and time (with time zone) of the violation and any identifying information regarding the violator, including e-mail or IP (internet protocol) address if available, as well as details of the violation.
3.5 Revision of AUP. Provider may change this AUP at any time by posting a new version on the VIAT Services LLC website (www.viatservices.com/termsandconditions). The new version will become effective on the date on the website.
4. PRICE
4.1 Payment, Taxes, and Duties. All prices are in US Dollars and are subject to change without notice. Customers are responsible for any applicable duties and taxes. VIAT Services LLC accepts prepayments for all orders by credit card (VISA, MasterCard, AmericanExpress) or purchase orders from academic institutions fulfill your orders.
4.2 Invoice. Customer shall pay Provider the invoice amount, which is presented to the Customer upon ordering the Product/Service and is emailed, upon order placement, to the Bill To contact on the order form completed by Customer or provided to the Provider via the members portal, email or phone.
4.3 Start of Fees. At any time before, during, or after the Free Trial period, upon receipt of Customer's order for the Product/Service (whether via email from Customer, or otherwise), Provider may invoice Customer for Product/Service fees.
4.4 Information Accuracy. Customer shall provide Provider with complete and accurate information, as well as complete and accurate billing and contact information.
4.5 Pre-Payment. Customer recognizes and agrees that the Provider has substantial front-loaded costs and expenses that are included in the pricing of the Product/Service and that Product/Service is sold on a pre-paid basis. Once Customer places an order it is noncancellable and Service fees are not refundable under any circumstances.
5. PRODUCTS/SERVICES SUPPORT AND PROVISION
5.1 Support Hours. VIAT Services LLC provides Product/Services support between the hours of 9 a.m until 5 p.m. EST.
5.2 Service Provision. The Provider will not be liable for any failure to achieve the availability of Product/Service. The Product/Service may be suspended temporarily and without notice in circumstances of system failure, maintenance or repair and for other reasons beyond the control of Provider.
6. CONTENT & IP
6.1 Provider Content. Customer recognizes, acknowledges, and agrees that: (a) all content on the Product/Service, including but not limited to assessments and assessment items, are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws.
6.2 Customer Content. Provider is authorized to use Customer data to provide the Product/Service to Customer and in any other way authorized by Customer.
6.3 Ownership of the Product/Service. Provider retains all right, title, and interest in and to the Product/Service, including without limitation all software used to provide the Product/Service and all logos and trademarks reproduced through the Product/Service, other than Customer's logos as applicable, and this Agreement does not grant Customer any intellectual property rights in or to the Product/Service or any of its components. Without limiting the generality of the foregoing, this Agreement does not grant Customer a software or trademark license.
6.4 Maintenance of Assessment Security. Each Customer must agree to comply with basic principles of minimum assessment security, that 1) assessment takers must not receive assessment answers before beginning assessments; 2) assessment users must adhere strictly to copyright laws and under no circumstances photocopy, translate, alter, paraphrase items, distribute, publish, or otherwise reproduce answer forms, assessment questions, assessment booklets, or manuals; and 3) access to assessment material must be limited to qualified persons who agree to safeguard their use.
6.5 Translations and Derivatives. Customers agree they will not make any derivatives, translations or alterations of VIAT Services LLC materials. The VIAT Services LLC assessments will not be used to develop another psychometric assessment tool or be modified in any manner. Creating an unauthorized written translation from the VIAT Services LLC materials violates U.S. and international laws related to intellectual property and copyright, these Terms, and is expressly prohibited by the rightsholder. Absolutely no translations are authorized by VIAT Services LLC and are expressly prohibited. Absolutely no creation of alternate copies of the Product/Services in other formats or media is allowed (including putting a computerized or paper & pencil version of an assessment online).
7. COPYRIGHT
7.1 Content Rights. Customer shall not (without limitation) reproduce, distribute, or disclose to third parties any assessment materials (including assessment stimuli and assessment answers) and copyrighted materials (including all content on Provider’s website and Members Area of the Provider’s website). Customer acknowledges and agrees that assessments and other content in the Product/Service are protected by copyright and other laws and are Provider's Confidential Information (as defined below in Section 10.1) and that unauthorized distribution, disclosure, or other use would reduce or destroy their validity, usefulness, and value and cause Provider substantial damage. Customer agrees that breach of the provisions of this Section 7.1 would cause Provider irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, Provider will be entitled to preliminary, temporary, and permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
8. USE OF PRODUCT
8.1 Use of Product. It is the Customer’s responsibility to use any Product/Services purchased from VIAT Services in accordance with applicable American Psychological Association guidelines, the License Agreement (if applicable) and all federal, state/province, and local laws and regulations (including all intellectual property, patent, trademark and copyright laws). You understand and agree that VIAT Services Product/Services are meant to be used as tools to supplement the overall assessment process, and are not intended or designed to be used alone or to replace professional judgement. It is not the responsibility of VIAT Services to ensure that assessments are used properly. That responsibility remains with the Customers even in cases where the Customers delegates the administration and/or interpretation of an assessment to someone else. Individuals who purchase an assessment for teaching or decision-making purposes must agree to abide by the principles set forth in the Standards for Educational and Psychological Testing (AERA, APA, & NCME, 1999) and in the Guidelines for Education and Psychological Testing (CPA, 1987).
A. Qualifying Users. Products/Services that will be used for research purposes may be purchased only by faculty or graduate students who 1) are affiliated with an institution of higher education, 2) intend to use the assessment as a part of academic research only, 3) have an advanced professional doctoral degree that provides appropriate training in the administration and interpretation of psychological assessments or license/certification demonstrating their qualifications in ethical and competent use of psychological assessments (for Graduate Students, the research supervisor must have these qualification), and 4) are 18 years or older on the date of purchase of the Product/Service. All Customers will take full responsibility in compliance with this matter.
B. Code of Ethics. The Customer will adhere to a code of ethical conduct similar to the code approved by the American Psychological Association.
C. Use of Materials: Products/Services bought for research purposes cannot be used for business or consulting purposes or in any profitable enterprise.
D. Derivative works. The VIAT Services LLC assessments shall not be used to develop another psychometric assessment tool or be modified in any manner. The Customer agrees not to create derivative works or assessments based on VIAT Services LLC products without explicit written approval from VIAT Services LLC.
E. Prohibition of Administering the Assessments Online. It is strictly prohibited for the Customer to put any of the assessment materials (e.g., questions) or any related materials online without explicit written approval from VIAT Services LLC.
F. Translations. The Customer shall not make any translations or alternations of VIAT Services LLC materials without explicit written approval from VIAT Services LLC. Creating an unauthorized written translation from the VIAT Services LLC materials violates U.S. and international laws related to intellectual property and copyright, the Terms, and is expressly prohibited by the rightsholder. Absolutely no translations are authorized by VIAT Services LLC and any translation is expressly prohibited without explicit written approval from VIAT Services LLC.
G. Copies. The assessment(s) used cannot be copied or reproduced, in whole or in part, or distributed to individuals outside of the designated research team for any reason without explicit written approval from VIAT Services LLC.
H. Disclosure of VIAT Services Materials. VIAT Services LLC, retains all rights to our Products/Services including assessments. VIAT Services LLC does not grant permission under any circumstances for individual questions, partial or full versions of our assessments to be included as a part of any document including, but not limited to any documents derived from the use of our assessment in research studies, dissertations, reports, appendices, journal submissions, or conference presentations. Misuse to this end is a violation of VIAT Services LLC’s copyright and license. You may request written permission from VIAT Services to include items from the assessment for illustrative purposes with the appropriate permissions, but VIAT Services LLC retains the right to deny your permission for any reason. Please contact info (at) viatservices (dot) com for additional information.
I. Required Citation. Customers must acknowledgement the Product/Services used in their research in any document derived from the use of VIAT Services Product/Services in their study including an 1) explicit acknowledgement of use of assessment from VIAT Services LLC, and 2) a citation of the relevant original journal publication on the Product/Service, exactly as provided to the User in the receipt of purchase, written communication via email from VIAT Services to you, or in the License Agreement.
J. Academic Purchase Qualification. All researchers must apply for an Academic Purchase Qualification in order to purchase VIAT Services Products/Services. In case a graduate student wants to purchase the Product/Services, they must obtain a letter on university letterhead from their research supervisor confirming their enrollment in the program and stating that the research supervisor taking full responsibility for research supervision. VIAT Services reserves the right to reject any Academic Purchase Qualification for any reason it sees fit. The Academic Purchase qualification will only be effective for two years after Provider’s approval of the Academic Purchase Qualification application.
K. Termination of Service. The Provider, at its sole discretion, reserves the right to terminate your access to the Product/Service and any login(s) or account(s) you may have in connection with the Product/Service at any time.
A.Decisions based on the 3TOTA. The Provider can accept no liability for the consequences of the use of the 3TOTA report including any decisions that will be made based on this report alone or in conjunction with other sources of data such as other assessments. The statements in the report should be viewed as assumptions to be validated against other sources of data such as performance at work/school, interviews, biographical information, or other assessment results.
9. CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS
9.1 Customer Responsibility. Customer is responsible and liable for Users' use of the Product/Service, including without limitation any User conduct that would violate the Acceptable Use Policy or the requirements of these Terms applicable to Customer. Customer shall obtain the appropriate consent from the Assessment Taker, and VIAT Services will bear no responsibility in obtaining consent from the Assessment Taker. Customer shall inform Assessment Takers of the following:
(a) The Product/Service may be used solely for the purpose of taking assessments under Customer's direction and using its paid account or Free Trial.
(b) Assessment Taker shall not substitute an alternate assessment-taker or use the aid of any other person, reference, or instrument in completing assessments in the Product/Service (unless specifically directed to do so by the Customer).
(c) Assessment Taker shall keep all non-public information about the Product/Service, including but not limited to assessment content and assessment items, confidential.
(d) In case of the 3TOTA, the Assessment Taker consents to taking the assessments by taking the assessment (and agreeing to the Terms and Conditions of Use during the assessment).
9.2 Assessment Practices. Customer acknowledges and agrees that: (a) assessment scores should be only one element of a comprehensive applicant evaluation process; (b) it shall be Customer's responsibility to become familiar with the Uniform Guidelines on Employee Selection Procedures ("UGESP") issued by the U.S. Equal Employment Opportunity Commission to help avoid cultural bias and unfair discrimination and to make certain that only job-related selection techniques will be used in hiring job applicants; and (c) use of assessments for evaluation of applicant honesty or integrity is unlawful in some jurisdictions or subject to legal restrictions. Customer shall not use honesty or integrity testing where forbidden by applicable law. PROVIDER WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR CLAIMS OR LOSSES ARISING OUT OF OR RELATED TO CUSTOMER'S HIRING PRACTICES, INCLUDING WITHOUT LIMITATION CUSTOMER'S BREACH OF THIS SECTION 9.2.
9.3 Data Accuracy. Customer assumes sole responsibility for the accuracy of data uploaded to the Product/Service by Users, and Provider shall have no responsibility or liability for the accuracy of such data.
9.4 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Product/Service, including without limitation by protecting its log-in passwords and other information. The steps required in the preceding sentence shall be no less extensive than Customer takes to protect its accounts and other information of similar sensitivity. Customer shall notify Provider immediately of any known or suspected unauthorized use of the Product/Service or breach of its security and shall use best efforts to stop said breach.
9.5 Recruitment Agencies. Customer shall not use the Product/Service to facilitate hiring of employees or retention of contractors by any person or entity other than Customer itself for its own internal needs, unless it has clearly identified itself to Provider as an Recruitment or Employment Agency and has Provider's prior written consent.
9.6 Personal Identifiable Information. Customer acknowledges and agrees that student records, employee records, applicant resumes, job applications, and other Assessment Taker materials contain personally identifiable information. Customer shall abide by all applicable privacy and data protection laws. Customer is responsible for determining the Product/Service’s suitability for use with data regulated by the Gramm-Leach-Bliley Act, the European Union's data privacy requirements, and other privacy-related law and regulations, and Provider is not responsible or liable for any incorrect determination. Provider will have no responsibility or liability for losses resulting from any failure to maintain data security, including without limitation Customer's breach of the requirements of this Section 9.6.
9.7 Technology Restrictions. In addition to the requirements of the Acceptable Use Policy, Customer shall not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially or non-commercially exploit or make the Product/Service or its content available to any third party in any way without Provider's explicit written consent; translate, modify, or make derivative works based upon the Product/Service or its content; share non-public Product/Service features or content with any third party; reverse engineer the Product/Service; access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Product/Service, or to copy any ideas, features, functions or graphics of the Product/Service;
(b) use the Product/Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; or
(c) interfere with or disrupt the integrity or performance of the Product/Service or the data contained therein.
10. CONFIDENTIALITY
10.1 Confidential Information. "Confidential Information" refers to: (a) the assessment(s), related assessment(s) materials, and other content provided to Customers or Users through the Product/Service; (b) any pricing or non-standard terms that Provider has offered to Customer, including the pricing available under this Agreement, (c) business and marketing plans, technology and technical information, product plans and designs, and business processes and (d) any other information Provider provides to Customer in any form either marks "Confidential" or and orally designates as "Confidential" (provided Provider confirms any oral designation in writing within 15 business days). Notwithstanding the foregoing, Confidential Information does not include information: (i) in Customer's possession at the time of original disclosure by Provider, without obligation of confidentiality; (ii) independently developed by Customer without use of or reference to information provided by Provider; or (iii) that becomes known publicly, before or after disclosure, other than as a result of Customer's improper action or inaction.
10.2 Trade Secrets. The Customer acknowledges and agrees the contents of VIAT Services LLC products may constitute trade secrets, which include confidential and proprietor material, information, and procedures. The Customer will not resell or otherwise distribute materials, or authorize or allow disclosure of the contents of an assessment instrument protocol, including assessment questions and answers, or normative data. The Customer acknowledges and agrees that the use or disclosure of trade secrets in a manner inconsistent with the provisions of this Agreement may cause VIAT Services LLC irreparable damages for which other than injunctive relief may be inadequate. Accordingly, Customer agrees that in any request by VIAT Services LLC to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, the Customer will not maintain that such remedy is not appropriate under the circumstances.
10.3 Disclosure. Customer may disclose Confidential Information to its Employees who need to know in order to facilitate the purpose behind disclosure, provided each such Employee is subject to a nondisclosure agreement with Customer protecting such information, with terms no less restrictive than those of this section. However, Customer may disclose Confidential Information as required by applicable law or by proper legal or government authority, provided it gives Provider advanced written notice reasonably sufficient to obtain a protective order or otherwise to contest such required disclosure, and provided Customer reasonably cooperates in any such effort. Customer shall promptly notify Provider in writing of any misuse or misappropriation of Confidential Information that comes to its attention and shall cooperate with Provider in investigating any such misappropriation. Upon termination of this Agreement or upon Provider's written request, Customer shall return all Confidential Information and certify, in writing, the destruction of any copies thereof.
11. WARRANTY
11.1 From Customer. Customer represents and warrants that: (a) it has accurately identified itself, it has not provided any inaccurate information about itself to the Provider or through the Product/Service, and it will update all such information to maintain accuracy; (b) it is 1) a corporation, LLC, partnership, sole proprietorship, or other business entity of an individual 18 years or older authorized to do business pursuant to applicable law or 2) faculty or graduate student 18 years or older who fulfil the requirements in Section 8.2A; (c) it will use the Product/Service for recruitment, talent management, career services, or research purposes and not for personal, family, household, other consumer purposes, or other unauthorized distribution of VIAT Services LLC Product/Services; (d) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; and (e) no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
11.2 As Is. Customer understands and agrees that neither the Provider nor any participant in the Product/Service provides professional advice of any kind and that Customer's use of the Product/Service is entirely at Customer's own risk. THE PRODUCT/SERVICE IS PROVIDED "AS IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER, ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY "SUPPLIERS") DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCT/SERVICE AND RELATED MATERIALS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
11.3 No Warranties. VIAT Services LLC makes no warranties, expressed or implied, including warranties of merchantability or fitness for a particular purpose. Replacement of materials or refund of all or a portion price, at VIAT Services LLC sole option and in accordance with the product returns policy constitutes the Customer’s sole and exclusive remedy, in lieu of all remedies and actual, consequential, special, incidental, or other damages in connection with the product and any use or misuse thereof. VIAT Services LLC will not, under any circumstances, be liable to Customer’s expenses for delays, for cost of substitute materials, or for possible lost income, grants, profits, or any other special or consequential damages that may result from using a product.
11.4 Additional Disclaimers. WITHOUT LIMITING THE GENERALITY OF THE PROVISIONS OF SECTION 11.3 ABOVE: (a) PROVIDER DOES NOT WARRANT OR GUARANTEE THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, OR QUALITY OF ANY CONTENT IN THE PRODUCT/SERVICE, REGARDLESS OF WHO ORIGINATES THAT CONTENT; (b) PROVIDER DOES NOT WARRANT THAT THE PRODUCT/SERVICE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION OR THAT THE PRODUCT/SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; (c) PROVIDER IS NOT RESPONSIBLE OR LIABLE FOR CUSTOMER'S MISUSE OR UNAUTHORIZED USE OF THE PRODUCT/SERVICE; (d) PROVIDER DOES NOT WARRANT THAT ANY SOFTWARE OR LINKS PROVIDED WITH OR THROUGH THE PRODUCT/SERVICE WILL BE FREE OF COPYLEFT OR VIRAL LICENSES OR OTHER LEGAL RESTRICTIONS THAT IMPOSE OBLIGATIONS ON PROVIDER OR CUSTOMER; AND (e) PROVIDER IS NOT LIABLE OR RESPONSIBLE FOR ANY CONTENT POSTED ON OR LINKED FROM THE PRODUCT/SERVICE, INCLUDING WITHOUT LIMITATION ANY ERRORS OR OMISSIONS IN CONTENT, OR FOR ANY LOSSES OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF OR RELIANCE ON ANY CONTENT. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT BEARS ALL RISKS ASSOCIATED WITH USING OR RELYING ON CONTENT PROVIDED THROUGH THE PRODUCT/SERVICE.
12. LIMITATIONS OF LIABILITY
12.1 No Consequential Damages. NEITHER PROVIDER NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, VENDORS, OR SPONSORS, NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, OR OTHER REPRESENTATIVES, SHALL BE HELD RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE Product/Service, OR ITS CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE).
12.2 Dollar Cap. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER'S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PRODUCT/SERVICE, AND ITS CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE), WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE PRODUCT/SERVICE DURING THE 12-MONTH PERIOD PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
12.3 Clarifications & Restrictions. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION 12 APPLY EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 12, PROVIDER'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
13. INDEMNIFICATION
13.1 Indemnification. Customer shall defend, indemnify, and hold harmless Provider (including its officers, directors, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, affiliated companies, and insurers) from any and all claims, suits, damages, liability, losses, fees, and expenses (including reasonable attorney’s fees) resulting from or arising out of any act or omission of the Purchase under these Terms or from any Indemnified Claim. An "Indemnified Claim" is a third party claim, suit, or proceeding arising out or related to Customer's alleged or actual use of, misuse of, or failure to use the Product/Service. Indemnified Claims include, without limitation: (a) claims by Users (including Employees); (b) claims alleging failures of the Product/Service, security breaches, and faults in the Product/Service leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to a User, or to other third parties); and (c) claims arising from Provider's alleged or actual negligence. Customer's obligations set forth in this Section 13.1 include, without limitation, payment of losses, damages, judgments, settlements, attorneys' fees, and other expenses and costs. Without limiting Provider's rights or remedies, Provider will have the right to refuse any settlement that restricts its rights granted under this Agreement, requires an admission of wrongdoing or liability, or subjects it to any ongoing obligations.
14. WAIVER AND GOVERNING LAW
14.1 Waiver. These Terms may not be waived, amended, or modified, except by prior written agreement by VIAT Services LLC. If any one or more provisions of these Terms are found to be illegal or unenforceable, the remaining provisions will be enforced to the maximum extent possible. To the extent any purchase order conflicts with or amends these Terms in any way, these Terms, as unmodified, will prevail.
14.2 Choice of Law & Jurisdiction. This Agreement shall be governed solely by the internal laws of the State of Florida without reference to any principle of conflicts of law that would apply the substantive laws of another jurisdiction to the parties' rights or duties. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the State of Florida.
15. TERM & TERMINATION
15.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and (unless terminated earlier as provided below) continue until the end of the term as identified on the invoice. The Term will renew only if the parties so agree in writing or if the Customer renews the term through the VIAT Services website.
15.2 Termination for Cause. Either party may terminate this Agreement for the other's material breach on 30 days' written notice, unless the other party cures such breach before the effective date of termination.
15.3 Effects of Termination. The following provisions will survive termination or expiration of this Agreement: (a) obligation of Customer to pay for Product/Service as provided herein; (b) Sections 2.2, 2.3, 6.1, 7.1, 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, 9.7, 10, 11, 12, and 13, of this Agreement; and (c) any other provision that must survive termination to fulfil its essential purpose.
16. MISCELLANEOUS
16.1 Notices. Provider may send notices pursuant to this Agreement to Customer's email contact points provided by Customer, and such notices will be deemed received twenty-four hours (not counting weekends) after they are sent. Customer may send notices pursuant to this Agreement to info (at) viatservices (dot) com email contact and such notices will be deemed received seventy-two hours (not counting weekends) after they are sent.
16.2 Amendment. Provider may amend these Terms, AUP section of the Terms, License Agreement, Assessment Taker Terms of SUse and Privacy Statement, or Privacy Policy from time to time by posting an amended version on its website, provided no such amendment will be effective during the then-current Terms if it materially reduces Customer's rights or increases its obligations. Customer's continued use of the Product/Service will confirm Customer's consent thereto. Otherwise, this Agreement may not be amended other than by a written instrument executed by authorized representatives of each party.
16.3 Force Majeure. (a) No Liability. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations. (b) Best Efforts to Cure. In the event of a threatened default or default as a result of any cause beyond its reasonable control, the defaulting party shall nonetheless exercise its best efforts to avoid and cure such default. (c) Right to Terminate. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.
16.4 Parental Control Notice. Pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies Customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding such protections may be found on the Internet by searching "parental control protection" or similar terms.
16.5 Assignment & Successors. This Agreement shall be binding upon and inure to the benefit of the parties' respective successors and assigns. Customer shall provide prompt written notice to Provider, clearly detailing the full billing and service contact information and an accurate Employee headcount for its successors and assigns.
16.6 Construction. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver signed such party. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
16.7 Release of Assessment Material in the Litigation Context and Ethical Obligations. We recognize due to the legal system, compelling reasons for disclosure of secured materials may arise. To abide by the Terms, we expect the Customer to do all they can to protect copyright material and to protect the items and scoring criteria and confidential, copyright, and trade secret material in response to written requests and/or subpoenas. An exception to releasing assessment data by a subpoena exists when the qualified purchaser obtains a court order by extinguishing, also known as “quashing” or modifying, the subpoena. In this case, we require Customers to bring to the court’s attention concerns regarding assessment security and to take steps to resolve the conflict in a responsible manner. When faced with a subpoena or a court order for the reproduction of Assessment Materials, the Customer should secure a court order or protective agreement (to the extent possible) containing the following requirements: (a) restricted access to materials and the testimony regarding materials to the most limited audience possible (b) restricted copying of materials (c) assurance of the return or destruction of the materials at the conclusion of the proceeding (and confirmation of such return or destruction);, and (d) the sealing of an/or removing from record to the extent any portion of such materials are disclosed in pleadings, testimony, or other documents in order to safeguard the integrity of the assessments. It is crucial that VIAT Services LLC materials do not become part of the public record. In the absence of a protective court order, we do not support the release of Assessment Materials to unqualified users who do not have an interest in maintaining the security of the assessment for the reasons stated above. The Customer may wish to consult a lawyer to assist with the above.